This is the court ruling on the United Democratic Party Election Petition lodged at the Supreme Court of the Gambia against President Adama Barrow, the Independent Electoral Commission and the Attorney General.
IN THE SUPERIOR COURTS OF THE GAMBIA
IN THE SUPREME COURT OF THE GAMBIA
SC EP NO.01 /2021
IN THE MATTER OF ELECTION FOR PRESIDENCY OF THE REPUBLIC OF THE GAMBIA HELD ON 4TH DAY OF DECEMBER 2021
IN THE MATTER OF THE ELECTION PETITION OF THE UNITED DEMOCRATIC PARTY FILED PURSUANT TO SECTIONS 49 AND 127 OF THE CONSTITUTION OF THE GAMBIA AND RULE 62 OF THE SUPREME COURT RULES AND SECTIONS 97, 166 AND 117 OF THE ELECTIONS ACT
UNITED DEMOCRATIC PARTY … PETITIONER
ADAMA BARROW … 1ST RESPONDENT
INDEPENDENT ELECTORAL COMMISSION … 2ND RESPONDENT
THE ATTORNEY GENERAL … 3RD RESPONDENT
CORAM: Hon. Mr. Justice H.B Jallow (CJ)
Hon. Mr. Justice C.S Jallow – QC (JSC)
Hon. Mrs. Justice M.M Sey (JSC)
Hon. Mrs. Justice A. Bah (JSC)
Hon. Mr. Justice E. F. M’Bai (JSC)
Representation: B. S. Touray for Petitioner with him L. S. Camara, A. A. Bensouda, L.L Darboe and F. E Darboe. Petitioner’s representative present in the person of Ajie Yam Secka, Deputy Party Leader of the UDP.
I.D Drameh for first Respondent with him S.M Tambadou, S. Sillah, Y. H. Cox and P. Bakurin
- Sanyang with him M.H.B. Jallow and F. M. Jawo, for Second Respondent
- Thomasi Solicitor General for the Third Respondent, with him Binga D, Director of Civil Litigation Attorney General’s Chambers and K. Tah, Deputy Director of Civil Litigation Attorney General’s Chambers
Dated the 28th day of December 2021
Hon. Justice H.B. Jallow Chief Justice: The Second Respondent, the Independent Electoral Commission (IEC) (hereafter “the Commission”), pursuant to Section 43(1)(a) and Section 46 of the Constitution conducted on 4th December, 2021 elections to the office of President of the Republic of The Gambia. On 5th December, 2021 the Commission through its Chairperson declared the first Respondent Adama Barrow as duly elected to the Office of President of the Republic of The Gambia with a total of 457,519 votes cast in his favour.
The Petitioner, a registered political party which had sponsored a candidate in the person of A.N.M.O. Darboe who had 238,253 votes cast in his favour as announced by the Commission, was dissatisfied with the conduct and outcome of the elections and accordingly pursuant to Sections 49 and 127 of the Constitution, Rule 62 of the Supreme Court Rules and Sections 97, 116, and 117 of the Elections Act (Cap. 3.01 Laws of The Gambia) filed a petition on 14th December, 2021 challenging the election of the First Respondent.
The Petition, supported by an affidavit of verifying facts deposed to by Alagie S. Darboe and a statement of case, sought the following reliefs from this Court, to wit that:-
“a. the election of the Respondent Adama Barrow was invalid by reasons of corrupt practices;
- the said Respondent ADAMA BARROW was not duly elected or returned and his election otherwise invalid;
- the votes cast in favour of the Respondent ADAMA BARROW in all regions are void by reason of corrupt and illegal practices;
- the election is otherwise invalid by reason of the non-compliance with electoral laws, widespread irregularities and improprieties which affected the results in favour of the Respondent.
- the election is otherwise invalid by the non-compliance with the Constitution and all applicable election laws.
- that the Petitioner may have such further or other relief as may be just.”
The Petitioner also filed a motion ex parte on the same day pursuant to Section 98 (2) and (3) of the Elections Act (Cap. 3:01) and Rule 9 of the Election Petitions Rules praying the Court:-
“a. to fix the amount that the Petitioner shall give as security for the payments of all costs, charges and expenses; and
- In what manner such security shall be given; and
- For such further and other orders as this Honourable Court may deem fit to make.”
The Chief Justice sitting as a single Judge of the Court pursuant to Rule 26 of the Rules heard the application on 16th. December, 2021 and ordered that:-
“(a) the Petitioner/Applicant shall provide security in the sum of D300, 000.00 (three Hundred Thousand Dalasis) for the payment of all costs, charges and expenses relating to this suit;
(b) the security shall be in the form of cash deposit with the Master/Registrar or payment into a Bank account designated by the Master/Registrar or by a Bank guarantee; and
(c) the Petitioner/Applicant shall comply with the order not later than close of business on Tuesday the 21st of December 2021 and shall file proof of such compliance with the Court.”
On 21st December, 2021 the Petitioner filed a notice of compliance with the said Order of the Chief Justice for the provision of security for costs in the sum of D300,000.00.
The Registrar of the Court caused the service of the petition on the First Respondent on 15th December, 2021 together with a notice of mention of the case scheduled for 17th December, 2021. This notice was also served on the Petitioner.
The Petitioner by motion ex parte dated 15th December, 2021 applied for the joinder of the Independent Electoral Commission (IEC) as a respondent to the case. The application was heard and granted by the Chief Justice on 16th December, 2021. Consequently, learned counsel for the Petitioner, B. S. Touray, applied orally for the petition to be amended by the insertion of the Second Respondent as a party to the suit. This was granted by the Court. The Registrar accordingly caused the petition and the notice of mention of the case to be served on the Second Respondent.
At its first public sitting on 17th December, 2021 the Court suo motu joined the learned Attorney General to the suit in view of the legal and constitutional issues which the petition appeared to raise for the learned Attorney General to address the Court on the said issues.
The Court drew the attention of the parties to the need for expeditious disposal of the case given the public interest in early finality to this matter as well as the need to adhere to Section 124 (1) (a) of the Constitution which provides that “it shall be the object of every court to deliver decisions expeditiously“ and in the case of a petition such as the instant one, “not later than thirty days.” In order to facilitate the speedy and efficient management of the case, the Court invited all counsel to a status/pretrial conference which was held in Chambers on 20th December, 2021. The outcome of the conference, the details of which need not occupy us in this ruling, were embodied in an Order which was issued in open Court on Tuesday 21st December, 2021.
The First Respondent entered a conditional appearance by memorandum on 16th December, 2021 and a conditional answer to the petition on 20th December, 2021.
The First Respondent also filed two motions on 16th December and 20th December each of them challenging, on different grounds, the competence of the Court to hear the petition. The motion of 16th December was based on the reliance of the First Respondent on Section 69 (1) of the Constitution, which provides as follows:-
“(1) Except as provided in subsection (2), no civil or criminal proceedings shall be instituted or continued against any person while holding or performing the functions of office of President in respect of anything done or omitted to be done by him or her whether in an official or a private capacity.’’
The motion was opposed by the Petitioner. When the Court refused the application by the First Respondent for the consolidation of the two motions as they had already been scheduled for two different days and the notice of the consolidation motion had not been effected in a timely manner, the Applicant/First Respondent applied to withdraw the motion for dismissal on this constitutional ground. The application was granted by the Court and costs of D10, 000 awarded to the Petitioner against the Applicant/First Respondent.
The motion dated 20th December, 2021 for dismissal of the case (hereafter “the second motion”) sought the following reliefs from the Court:-
“(1) The dismissal of the amended election petition dated the 15th day of December 2021 and filed on the same date on the following amongst other grounds:
(i) Election laws are to be interpreted stringently, particularly with regard to their time lines and their provisions held as mandatory;
(ii) Neither the Petition (filed on the 14th day of December 2021) nor the Amended Petition were served on the 1st Respondent within the period or the manner required by the Election Rules and such non-compliance with the procedure for service of the petition renders these proceedings a nullity since non-compliance with requirements of the Elections Act is fatal to a petition;
(iii) The Amended Election Petition was filed without the hearing and determination of an application by motion on notice being served on the 1st Respondent and determined inter partes as required by the Election Petition Rules and acceptance of an improper election petition by a court goes to the question of jurisdiction;
(iv) There was no order made or served on the 1st Respondent granting leave for the amendment of the Election Petition or for the said Amended Election Petition to be filed and served by the Petitioner on the 1st Respondent;
(v) The joinder of the 2nd Respondent INDEPENDENT ELECTORIAL COMMISSION ( not the Independent Electoral Commission) could not properly be effected on the 16th day of December 2021 and after the time limit for the presenting a petition had elapsed and when the law strictly limits the time within which proceedings may be taken to impeach the validity of an election;
(vi) The said joinder could not properly be effected without the service of the application for a joinder and the hearing of the said application on notice to the 1st Respondent;
(vii) All proceedings initiated by the petitioner ex parte following the service of the Petition on the 1st Respondent be set aside as being a nullity for non compliance with the principles of fair hearing and with the Election Act and Election Rules;
(viii) As a result of the failure by the Petitioner to comply with or of its insufficient compliance with the Election Petition Rules the amended petition is a nullity and is incompetent.
(2) For such further or other orders as to this Court shall seem fit.”
The second motion was supported by a twelve-paragraph affidavit deposed to by Seedy Njie on 20th December, 2021.
The application was opposed by the Petitioner in an affidavit of opposition deposed to by Oley Dibba Wadda on 22nd December, 2021.
On 21st December, 2021 whilst the second motion was pending, the First Respondent filed a third motion supported by a four-paragraph affidavit deposed to by Seedy Njie on the same day seeking the dismissal of the petition on the grounds of non-compliance with Rule 11 of the Election Petition Rules.
This motion (hereafter “the third motion”) was opposed by the Petitioner/Respondent in a six-paragraph affidavit of opposition deposed to by one Maimuna Dibba Cham.
On the following day, 22nd December, 2021, the Second Respondent filed a “notice of intention to rely on preliminary objection to the petition” to the effect that the said party had not been properly joined to the suit and that the “amended petition is incompetent and abuse of process.”
The Petitioner also filed on 20th December, 2021 a notice of motion for joinder of an additional party to wit the National Peoples Party, supported by an affidavit of nine paragraphs deposed to on the same date by Maimuna Dibba Cham. This application which was set down for hearing on 24th December, 2021, was opposed by the First Respondent in a twelve- paragraph affidavit deposed to by Seedy Njie.
When the motions came up for hearing on 24th December, 2021 the Court ruled that it will hear the second and third motions which, if determined in favour of the Applicant/First Respondent, would terminate the proceedings and to suspend the hearings of the other motions until the issues raised in the second and third motions were determined by the Court. Although the Court heard the two motions seriatim, it is delivering a consolidated ruling covering the issues raised and the submissions made in relation to both motions.
Learned counsel, S. M. Tambadou, for the Applicant/First Respondent in moving the second motion submitted that:-
(i) neither the petition nor the amended petition had been served personally on the Applicant/First Respondent as required by Rule 12 of the Election Petition Rules (hereafter “the Rules”); that no order for substituted service had been obtained; that personal service is mandatory and the failure to effect personal service on the Applicant/ First Respondent rendered the process a nullity;
(ii) that the joinder of the Second Respondent IEC is defective in that the application should have been on notice and the parties given a chance to be heard on it pursuant to Rule 22 (2) which requires applications for amendments to be on notice;
(iii) that there was no application before the Court for an amendment to the petition;
(iv) that as a matter of fact the Order for joinder of the Second Respondent was made on 16th December, 2021 when, he submits, the 10 days for filing of a petition had elapsed;
(v) that the application was made ex parte when it should have been on notice and that the Order was made ex parte without giving the respondents a chance to be heard.
Learned Counsel, S. M. Tambadou, further submitted that in the matter of election petitions strict compliance with the Rules is mandatory and non-compliance is fatal to the proceedings. He relied on the judgment of Jallow CJ in the unreported case of Ousainou Jobarteh Vs Saihou Jawara and Ors (2018 unreported), the ruling of Omosum CJ in the unreported election petition case of Gibou Jagne Vs Abdoulie Alieu Njie (unreported, EP No. 4 of 1992) and the judgment of Ayoola C.J in the unreported election petition case of Sheriff M. Dibba Vs.Lamin Saho. (EP 1 of 1987).
Learned counsel also submitted that the failure to effect personal service of the petition on the Applicant/First Respondent, the hearing and granting of the joinder ex parte instead of on notice, the amendment of the petition without an application inter partes, the joinder of the Second Respondent to the suit after the expiry of the ten-day period for filing of a petition all vitiated and rendered the proceedings a nullity.
Learned counsel, K. Sanyang, for the Second Respondent relied on the submissions of the Applicant/First Respondent with regard to the “irregularities” in the processes and reserved his further submissions for the hearing of the preliminary objection raised by the Second Respondent.
The learned Solicitor General, H. Thomasi, appearing for the learned Attorney General, confined his submissions to issues of law and in this regard articulated the principles of law which should guide the Court in the resolution of election petitions. He submitted that electoral laws are by their nature sui generis and it is in the public interest for the courts to construe and enforce them strictly, particularly with respect to timelines and to require strict compliance with such; that there are ample judicial authorities to support the proposition that non-compliance with mandatory provisions of the Elections Act and Election Petition Rules is fatal to election petition proceedings. The learned Solicitor General also relied on the cases of Ousainou Jobarteh Vs Saihou Jawara and Ors, Williams Vs Tenby (1879), CPD 135, Sheriff M Dibba Vs Dr. Lamin Saho, and Gibou Jagne Vs Abdoulie Alieu Njie to support his submissions.
Learned counsel, B. S. Touray for the Petitioner and Respondent to the application submitted that the application lacks merit and urged the Court to dismiss it. He submitted that the petition and the amended petition were filed within the ten-day period for filing as required by Section 49 of the Constitution based on the fact that the results of the election were announced on 5th and not 4th December, 2021 and that the computation of time provisions of the Interpretation Act (Cap. 4:01) Laws of The Gambia applied. He submitted that the First Respondent had accepted service through the Chief Protocol Officer and that, in any case, any irregularity of service is deemed to have been waived by the Applicant/First Respondent as he had not protested such service. He further submitted that the joinder of parties is at the discretion of the Court and that the Court also has a duty to ensure that all parties who are entitled are joined to the suit; that joinder should never be allowed to defeat a cause of action, that the Petitioner had, on the record, made an oral application following the joinder in Chambers for amendment of the petition and the said application was granted by the single Judge.
Learned counsel further submitted that Rule 32 of the Supreme Court Rules (Cap. 6:05) provides that justice should not be defeated by any informal objections. He described the objections as a “storm in a tea cup” and submitted that there was in fact compliance with the Rules. He also relied on the cases cited by the learned counsel for the Applicant/First Respondent and the learned Solicitor General.
In his reply, learned counsel for the Applicant/First Respondent submitted that there was no waiver by his client of his right to personal service of the petition; that personal service is mandatory and non-compliance is fatal and that Rule 32 of the Election Petition Rules is of no relevance to the application.
The Court has carefully considered the submissions of the learned Solicitor General as well as learned counsel for the parties and the decided authorities cited by them on the guiding principles governing the judicial determination of election petitions. Some of the judicial authorities emanate from foreign jurisdictions and hence are not binding on the Gambian courts. They may nonetheless be relevant and of persuasive value and should not be ignored simply because of their provenance. Judicial decisions from foreign jurisdictions on the interpretation, construction or application of statutes which are in pari materia with Gambian legislation or deal with the principles of the common law which we share with those jurisdictions are of relevance and can be of persuasive value and indeed enrich our own local jurisprudence.
In determining election petitions, this Court will continue to be guided by certain fundamental principles, inter alia, that electoral laws and election petitions are sui generis, in a class of their own which require speedy resolution of disputes, strict and stringent application of the rules including timelines, and observance of the limits on the exercise of discretionary judicial powers.
In the case of Chiew Chiu Sing Vs Dato’ Seri Tiong King Sing  1 MLJ 759, at paragraph 84, the Malaysian Supreme Court said the following:-
“The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the court possesses no common law power.”
Coming to this jurisdiction, in the case of Ousainou Jobarteh and Ors Vs Saihou Jawara and 3 Ors (supra) the High Court (per Jallow C.J) considering a petition in relation to elections to the Office of Chairman of Kuntaur Area Council in 2018 held:-
“A long line of judicial authorities in The Gambia and the other Commonwealth jurisdictions have established that special considerations apply to the application and interpretation of election statutes. There is a need for the speedy resolution of issues relating to the alleged invalidity of an election; petitions should not be kept hanging long over the heads of candidates and others and must be presented within the time limit set by the law and proceeded with diligently; it is most important that the time of proceedings with election petitions is limited and persons should know when they are safe; the public interest requires a speedy resolution of election disputes so that candidates can know quickly if they have been validly elected or otherwise and the constituency concerned would know timeously who is its representative. Thus election laws are to be interpreted stringently, particularly with regard to their time lines.”
This Court had the opportunity to reiterate these principles in the election petition case of Joseph Henry Joof Vs Independent Electoral Commission (CS No. SC 004/2016) where the petitioner applied for the relisting of an election petition after it had been struck out for lack of diligent prosecution well after the time for filing had lapsed. In dismissing the application for relisting, this Court stated thus:-
“This is not an ordinary civil case; it is an election petition in which the outcome of the elections to the office of the President of the Republic as conducted on the 1st of December 2016 and thereafter declared by the respondent IEC is being challenged by the petitioner/applicant. The court therefore finds that the well established principles relating to the hearing and determination of election petitions are more relevant to the case, even on the issue of relisting than the ordinary rules for relisting of cases.
There are well established legal principles governing the hearing and determination of election petition cases. The public interest requires the speedy determination of such cases so that candidates should know their fate and the country will know within a reasonable time who its leaders are and the business of government can proceed smoothly…
It is also established by case law that in relation to election petitions the court cannot exercise powers that the Act or the Rules do not grant it. Thus, in both the Williams and the Nair cases it was held that unless the Rules or the parent Act confer power on the Court to extend the time within which actions are to be done the election petitions court has no power to do such things.”
The Court will now consider against this background the specific complaints of the Applicant/First Respondent in relation to the second motion for dismissal of the petition. First as to the computation of time for the filing of the petition and the amended petition, the Court takes notice that although the elections were held on Saturday, 4th December, 2021, the results were declared on Sunday, 5th December, 2021. Under Section 49 of the Constitution, a challenge to the election of the President has to be filed “within ten days of the declaration of the result of the election”. In the reckoning of the day from which the ten days will start to run, guidance is provided by Section 32 (a) of the Interpretation Act (Cap. 4:01 Laws of The Gambia) which states that:-
“In computing time
(a) a period reckoned by days from the happening of an event, or the doing of any act or thing, shall be deemed to be exclusive of the day on which the event happens or thing is done.”
Thus, the period of ten days for the filing of a petition will start running from Monday, 6th December, 2021. Section 32 (d) of the said Act is also germane to the computation of time in this case. It provides that:-
“when any Act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of time.”
The time for filing an election petition being in excess of six days it thus follows from the said Section 32 (d) that in the computation of time for filing, the excluded day of Sunday, there being no public holidays in between, shall be counted. The period runs from Monday the 6th, includes Sunday the 12th and ends on Wednesday the 15th, December 2021. Contrary to the submission of learned Counsel for the Applicant/First Respondent, the Court finds and holds that the petition, the amended petition and the application for joinder were all filed within the time limit prescribed by law.
Learned counsel further complains that the Applicant/First Respondent was not served personally with the petition nor was substituted service effected in accordance with Rule 12 of the Rules and submits that as a result the proceedings are a nullity and the petition should be set aside. Rule 12 does indeed require personal service of the petition on the Applicant/First Respondent. This means literally that the petition has to be handed over to the Applicant/First Respondent himself. Where this is not possible the Court may, inter alia, upon application under Rule 12 (2), order substituted service.
It is common ground that in the instant case the petition was served by the Court process server on the Chief Protocol Officer in the Office of the President (i.e. the Applicant/First Respondent) at the State House in Banjul. This is confirmed by the affidavit of service deposed to by Lamin Ceesay, Process Server on 16th December that on 15th December, 2021 he served the petition with notice of mention of the case on “Adama Barrow at Banjul through Protocol Alhagi O. Ceesay at his office State House, Banjul.”
This is not disputed by the parties, neither by the Applicant/First Respondent nor by the Petitioner. The question is whether this constitutes personal service on the Applicant/First Respondent. The Court believes it to be so. Ordinarily, personal service requires that the service be effected through the handing over of the documents or processes concerned to the person named therein. The circumstances of this case require a different approach. The Court takes judicial notice of the fact that the Applicant/First Respondent is the incumbent President of the Republic of The Gambia and that personal access to His Excellency is not, by reason of his office, easy. Where, as in the instant case, the petition is served on the Chief Protocol Officer who is an officer in the public service in the Office of the President, in close proximity to the Applicant/First Respondent and who has a duty as such officer to transmit the documents to the Applicant/First Respondent, it is reasonable for the Court to consider service of process on such an officer as personal service on the Applicant/First Respondent. Accordingly, the Court finds and holds, in the special circumstances of this case, that the Applicant/First Respondent was properly served personally with the petition by the Court process server.
The Applicant/First Respondent complains that the joinder of the Second Respondent to the suit is invalid as it was made ex parte and not on notice as required, in his view, by Rule 22 (2) of the Rules requiring applications for amendments to be by motion on notice to the other party to the petition. And that no application was made for the amendment of the petition. The application for joinder was indeed made ex parte and heard by His Lordship the Chief Justice as an interlocutory matter pursuant to Rule 26 of the Rules which provides that “all interlocutory questions and matters, except as to the sufficiency of the security, shall be heard and disposed of before the Chief Justice.” The party sought to be joined as Second Respondent was the Independent Electoral Commission (IEC). The Returning officer in any election is a proper party to an election petition and may be joined. The rule stated in Halsbury’s Laws of England, 3rd Edition, Vol. 14 at page 265, paragraph 466 and cited with approval by Chief Justice B. A. Omosun in the election petition case of Gibou Jagne Vs. Abdoulie Alieu Njie (Supra) is that:-
“any person whose election is questioned by a petition, and any returning officer of whose conduct a petition complains, may be made a respondent to it.”
The returning officer or, as in the case of The Gambia the IEC, being the institution with constitutional responsibility for the conduct of elections is a natural respondent to an election petition as it is the declaration of result made by the IEC which is in question or being challenged before the Court. Beyond that, there are also specific allegations levelled against the Second Respondent which require that the latter be joined to the action to defend itself. Furthermore, it is within the discretionary power of the Court to join the Second Respondent to the suit suo motu in the light of the foregoing, as it did with the joinder of the learned Attorney General.
The Court accordingly finds and holds that the joinder of the Second Respondent is not vitiated by it being made ex parte and that the Second Respondent has been properly joined to the suit.
It is also on record, contrary to the submission of learned counsel for the Applicant/First Respondent and confirmed by both learned counsel for the Petitioner and the Court itself that the Petitioner, upon the grant of the motion for joinder of the Second Respondent, applied orally for an amendment to the petition by the inclusion of the IEC as a respondent in the heading of the petition. That application was granted. The complaint that the ‘amendment’ was made without notice is of no consequence. It was purely consequential on the joinder of the Second Respondent. In essence, it was merely an amendment as to form without any change to the petition in its contents, complaints or reliefs being prayed for.
Accordingly, the Court finds and holds in the light of the foregoing that the second motion by the Applicant/First Respondent lacks merit and is accordingly dismissed.
I now turn to the third motion of the Applicant/First Respondent dated 21st December, 2021 and filed the same day. It is supported by a four-paragraph affidavit deposed to by Seedy Njie and prays the Court to order the following reliefs:-
“(1) The Petition of the Petitioner be dismissed for non-compliance with the requirement to give notice to the 1st Respondent of the nature of the security provided within five days after the presentation of the petition in accordance with the requirements of Rule 11 of the Election Petition Rules;
(2) That such non-compliance is fatal to the proceedings;
(3) For such further or other orders as to this Court shall seem fit.”
The Petitioner opposed the motion with an eight-paragraph affidavit in opposition deposed to on 22nd December, 2021 by Maimuna Dibba Cham.
In his submission, learned counsel for the Applicant/First Respondent, S. M. Tambadou, contended that the Petitioner has failed to comply with Rule 11 of the Rules and that such non-compliance is fatal to the petition.
Rule 11 reads as follows:-
“Notice of the presentation of a petition and of the nature of the proposed security accompanied by a copy of the petition shall be served by the petitioner on the respondent within five days after the presentation, exclusively of the day of presentation.”
Learned counsel submitted that at no time did the Petitioner serve the Applicant/First Respondent with any of the documents spelt out in Rule 11; that the Rule is mandatory; that non-compliance with it is fatal and renders the petition invalid. He accordingly urged the Court to dismiss the petition. In support of his submissions, he cited a number of cases, including Ousainou Jobarteh Vs Saihou Jawara and Ors (Supra) and Williams Vs. Tenby (Supra).
Learned counsel, K. Sanyang, for the Second Respondent adopted the submissions of the learned counsel for the Applicant/First Respondent and similarly urged the Court to dismiss the petition for non-compliance by the Petitioner with the provisions of Rule 11 of the Rules.
Learned counsel, K. Tah, led by the Solicitor General appearing for the Respondent Attorney General submitted that stringent application of and compliance with electoral legislation is required; that election matters are time bound; that infraction of rules particularly those relating to timelines can be fatal to the petition. He cited a number of cases in support of his submission, including Eminue Vs Nkereuwen (1966) 1ALL NLR P63 and General Bello Sarkin Yaki (Rtd) Vs Senator Abubacarr Atiku Bagudu and 2 Ors (2015) SC 722/2015.
Learned counsel, B. S. Touray, for the Petitioner in his reply submitted that on the face of the motion the only allegation of non-compliance with Rule 11 is with regards to the giving of notice of security for costs by the Petitioner and no other element of Rule 11; that such notice of security was given by the Master and Registrar in a memo of 20th December, 2021 which was copied to Counsel C. E. Mene for the Applicant/Respondent informing the Registrar of the Supreme Court that the Petitioner had deposited the sum of D300,000 in the Master’s/Registrar’s account at Bloom Bank Africa on 17th December, 2021 in compliance with the Order of the Court as security for costs.
Learned counsel further submitted that Section 49 of the Constitution dispensed with the requirement for a notice of presentation of a petition; that there is a conflict between Section 49 of the Constitution and Rule 11 of the Rules and as such the Constitution will prevail over the latter; that the Rules do not apply to elections to the Office of President but are limited to elections to the National Assembly and to other offices; and that service of process is the responsibility of the Court and not of the parties.
In his reply, S. M. Tambadou, learned counsel for the Applicant/First Respondent argued that although paragraph one of the motion related only to the issue of security of costs, the motion as a whole encompasses all the elements of Rule 11 by virtue of the prayer that the applicant seeks from the Court “for such further or other orders as to this Court shall seem fit.”
Let me turn at once to the submission of the learned counsel for the Petitioner that Rule 11 is in conflict with Section 49 of the Constitution and furthermore and in any case that Rule 11 and indeed the Rules do not apply to elections for the Office of President of the Republic.
The full text of Rule 11 has already been cited earlier in this ruling. Section 49 of the Constitution reads as follows: –
“Any registered political party which has participated in the Presidential election or an independent candidate who has participated in such an election may apply to the Supreme Court to determine the validity of the election of a President by filing a petition within ten days of the declaration of the result of the election.”
The submission is an important one, for the Constitution is the grund norm of the legal system and of the State and prevails over all other laws and actions of authorities and individuals. Section 4 of the Constitution clearly spells this out in the following terms:-
“This Constitution is the supreme law of The Gambia and any other law found to be inconsistent with any provisions of this Constitution shall, to the extent of the inconsistency, be void.”
It is evident, however, that there is no conflict or inconsistency between Section 49 of the Constitution and Rule 11 of the Rules. The former creates a right for certain persons and political parties to challenge the results of an election to the Office of President and a timeframe of ten days within which to do so and identifies the Supreme Court as the Court of competent jurisdiction to determine the validity of such an election. Section 5 (c) of the Supreme Court Act (Cap. 6:05) and Part V of the Supreme Court Rules further regulate the manner in which this original and exclusive jurisdiction of the Supreme Court may be activated and exercised. The Elections Act (Cap. 3:01) and the Rules made thereunder provide in greater detail for the regulation of matters relating to the conduct of elections and challenges to the validity thereof. Hence the Elections Act, the Rules and the Supreme Court Rules together provide for such further details as are, for instance, contained in Rule 11 of the Rules. That is in the nature of legislation. The Constitution is a foundation and framework legislation which sets out the broad principles of law and governance within which the State is to function. Much of the detail is left to be regulated by Acts of the National Assembly and of subsidiary legislation enacted thereunder. That is the arrangement in the matter of elections. The Court finds and holds that there is no conflict or inconsistency between Section 49 of the Constitution and Rule 11 of the Rules.
As to the argument that the Elections Act and the Rules do not apply to elections to the Office of President, the Act is itself very clear on the matter. Section 3 (1) of the Elections Act provides that:-
“This Act applies to the election of candidates for the office of President, members of the National Assembly, Mayor, Mayoress, Councillor and such other office as the Commission may, by order published in the Gazette, designate.”
In addition, Section 14 of the Interpretation Act deems all actions taken under subsidiary legislation to have been done under the parent Act. The application of the Elections Act and its subsidiary legislation, i.e. the Election Petition Rules, to elections to the Office of President is beyond dispute and the Court so finds and holds. It is somewhat surprising that learned counsel for the Petitioner submits to the contrary despite the fact that he has filed the petition under the Constitution, the Elections Act and the Rules.
What remains for determination by this Court is whether there has been compliance with Rule 11 of the Rules; and if the Court finds non-compliance to determine the effects or consequences thereof. Before engaging in that process, the Court considers it useful to set out the range and parameters of Rule 11. The Rule contains five important elements viz:-
(i) It casts a duty on the petitioner, and not on any other person or authority;
(ii) The duty on the petitioner is to serve the respondent to an election petition with a notice of the presentation, i.e. the filing of the petition;
(iii) The notice should have attached to it an indication of the nature of the proposed security;
(iv) A copy of the petition should be attached to the notice of presentation as well;
(v) The presentation of the document consisting of several parts should be served by the petitioner on the respondent within five days of the presentation, i.e. the filing of the petition.
In the instant case, has the Petitioner complied with these requirements of Rule 11? Learned counsel for the Petitioner argues that the motion is limited to the question of security of costs in relation to Rule 11. But has the Petitioner complied with the requirement in that limited respect? It is clear that no “notice…of the nature of the proposed security” was served on the Applicant/First Respondent by the Petitioner as required by Rule 11. The communication relied upon in this respect by the Petitioner is the letter of 20th December, 2021 from the Master and Registrar addressed to the Registrar of the Supreme Court confirming deposit of the sum of D300,000 by the Petitioner as security for costs. The letter is only copied to C. E. Mene, one of the learned counsel for the Applicant/First Respondent. It is attached to the affidavit in support deposed to by Maimuna Dibba Cham on 21st December, 2021. This does not comply with what is required by Rule 11, which is notice of the nature of the proposed security to be served by the Petitioner on the Applicant/First Respondent and attached to a notice of presentation of the petition together with the petition. Informing a third party of the deposit of security for costs and merely copying counsel for the Applicant/First Respondent does not constitute compliance with Rule 11.
Whilst the Court agrees with the submission of the learned counsel for the Petitioner that the last prayer in the motion of the applicant “for such further or other orders as to this Court shall seem fit” does not open the door to enlarging the motion beyond the issue of compliance with security requirements of Rule 11, the Court is unable to and should not close its eyes to the evidence before it in deciding whether Rule 11 has been complied with by the Petitioner. It is clear that the Petitioner has not served on the Applicant/First Respondent a notice of presentation of the petition as required by Rule 11 and relied instead on service of the petition by the Court as acknowledged in paragraph 4 of the affidavit in opposition deposed to by Oley Dibba Wadda in her affidavit of 22nd December, 2021. The Petitioner cannot rely on service by the Court or by another to discharge his obligation under Rule 11. Service by the Petitioner is distinct from service by the Court. An obligation of service is cast distinctly on the Petitioner. That obligation was not discharged by the Petitioner. The defect is not cured by counsel-to-counsel service of the amended petition, as stated by learned counsel for the Petitioner, without the other documents required by Rule 11. As Chief Justice Ayoola rightly observed in the election petition case of Sheriff M. Dibba Vs Dr. Lamin Saho, essentially what is to be served is the notice of presentation of the petition with the petition and the proposed security as appendages or attachments thereto.
This Court accordingly finds and holds that the Petitioner has failed to comply with the requirements of Rule 11 in that he did not serve the Applicant/First Respondent a “notice of the presentation of the petition and of the nature of the proposed security accompanied by a copy of the petition.”
What is the effect or consequence of such non-compliance? The answer depends on whether compliance with the Rule is mandatory or merely directory?
The Rule uses the word “shall” and the context in which the word is used makes compliance with the obligations mandatory, not directory. In other words, there is no discretion on whether a petitioner can choose to comply. A petitioner must comply or face the consequences of non-compliance. The head note to the case of Williams v. The Mayor of Tenby and Ors (1879) CPD, 3 reads:
“It is a condition precedent to the trial of a municipal election petition that, within five days after the presentation of it, the petitioner should in the prescribed manner serve on the respondent a notice of the presentation, and of the nature of the proposed security, and a copy of the petition…”
Furthermore, in the Privy Council case of Devan Nair v. Yong Kuan Teik (1967) PC, 31 relating to a petition concerning a return to a Parliamentary election, their Lordships considered rule 15 of the rules to the Malaysian Election Offences Ordinance which reads as follows:
“15. Notice of the presentation of a petition, accompanied by a copy thereof, shall, within ten days of the presentation of the petition, be served by the petitioner on the respondent.”
That rule is largely similar to Rule 11 of our Rules. In its judgment, the Judicial Committee of the Privy Council held at page 45 that:
“On the whole matter their Lordships have reached the conclusion that the provisions of rule 15 are mandatory, and the petitioner’s failure to observe the time for service thereby prescribed rendered the proceedings a nullity.”
The Court of Appeal of Sierra Leone held likewise in the case of Kanagbo and Anor Vs. Bongay (1962) 2 SLR.
The same principle applies in all elections in this jurisdiction. The obligations set out in Rule 11 are cumulative; they are not disjunctive. That means each single obligation must be adhered to. A failure of compliance with any obligation will be fatal. The obligation is specifically placed on the Petitioner alone to ensure that notice required under Rule 11 adheres to each single factor therein outlined. The service of a petition by another person other than the petitioner is not synonymous with service by the petitioner. Furthermore, the service of a petition simpliciter is not enough. There needs to be a notice specifically setting out the various obligations outlined in Rule 11, of which providing a copy of the actual petition is a part. One does not comply with Rule 11 by merely serving a petition without a notice, even if the petition is effected via a court process.
The rationale for the notice is simple. It gives a respondent required information to know what is alleged in relation to him or her concerning an election so he or she can have the opportunity to consider and present a response, if considered necessary. That includes a proposed, not necessarily actual, security for costs, charges and expenses to afford the respondent the opportunity to determine whether the proposed security is sufficient or otherwise.
The effect of non-compliance with the requirement of Rule 11 has also been the subject of judicial decisions in this jurisdiction. In the case of Sheriff M. Dibba V. Dr. Lamin Saho (Supra) where the petitioner failed to comply with the then Rule 15 of the Election Petition Rules which is in pari materia with Rule 11 of the current Rules, Ayoola CJ held that:-
“In my view from the authorities placed before me and on a consideration of the nature of election petitions, their public significance, the demand of the public interest, the object of the Elections Act and the Election Petition Rules, I hold that compliance with the provisions of Rule 15 is mandatory and obligatory and that non-compliance with the provision is fatal.”
The same issue arose in the case of Gibou Jagne v Abdoulie Alieu Njie (Supra). Omosun CJ cited with approval the decision of Ayoola C.J in the Sheriff M. Dibba case and accordingly held that the Rule being mandatory, non- compliance with it by the petitioner was fatal to the petition.
In the case of Ousainou Jobarteh Vs Saihou Jawara and 3 Ors (24th September 2018) Jallow C.J also cited with approval the decision in the Sheriff M. Dibba and Gibou Jagne cases and relied on the reasoning thereby to strike out an election petition filed out of time in contravention of Section 98(1) of the Elections Act.
In the case of Joseph Henry Joof Vs Independent Electoral Commission (Civil Suit. No. SC 004/2016) being an election petition arising from the 2016 elections to the Office of President of the Republic and seeking the relisting of a case that had been struck out, this Court held that given the public interest in the speedy and efficient management of such cases:-
“Timelines are set for the filing of election petitions and for the taking of various steps in the proceedings; such timelines, unless the contrary is indicated, are mandatory and their non-compliance is fatal to the proceedings.”
This Court cited with approval the case of Williams Vs the Mayor of Tenby and Ors (1879) CPD 135, Sheriff M. Dibba Vs Dr. Lamin Saho, Gibou Jagne Vs Abdoulie Alieu Njie, Nair Vs Teik and Ousainou Jobarteh Vs Saihou Jawara and 3 Ors.
Thus, failure to enter adequate security for costs within the prescribed time has been held to render a petition a nullity as also the failure to give notice of presentation of a petition and failure to file a petition within the prescribed time.
The Court finds and holds that on a proper construction of Rule 11 of the Election Petition Rules and the object and purpose of both the Rules and the Elections Act as well as the decided cases, Rule 11 of the Rules is mandatory and non-compliance therewith is fatal to an election petition.
In the result the Court, having found that the Petitioner has failed to comply with the requirements of Rule 11, hereby strikes out the petition and amendments thereto filed by the Petitioner United Democratic Party against the Applicant/First Respondent Adama Barrow, the Second Respondent Independent Electoral Commission and the Third Respondent Attorney General.
This Court awards costs in the sum of D100, 000 against the Petitioner in favour of the Applicant/First Respondent. Such costs are to be recovered from the deposit of D300, 000 lodged with the Court by the Petitioner.
Accordingly, there is no need for the Court to consider and determine any pending motions and applications.
The Court commends the learned Solicitor General and learned counsel on all sides for their invaluable assistance in the determination of this matter of great legal and public interest.
(Signed) Hon. Hassan B. Jallow, Chief Justice
I agree (Signed) Hon. Justice C.S Jallow QC JSC
I agree (Signed) Hon. Mrs. Justice M.M Sey JSC
I agree (Signed) Hon. Mrs. Justice A Bah JSC
I agree (Signed) Hon. Justice E. F. M’Bai JSC